The leaders of the African Union (AU) convened at an extraordinary summit in Addis Ababa this past weekend to discuss their strained relations with the International Criminal Court (ICC). These leaders initially came together to protest the ICC’s heavily African docket just before the Court was about to try its first sitting head of state: President Uhuru Kenyatta of Kenya. When the event ended without the African countries quitting the ICC en masse, as was heavily anticipated prior to the meeting, supporters of the Court breathed a sigh of relief.
The AU states did not quit primarily because a mass exodus would involve significant coordination problems and also because they feared formalities would result in a loss of foreign aid. Moreover, the states might have questioned why they would bother with the hassle of an exit when they could, en bloc, simply repudiate the objectionable aspects of the treaty. For international law, this course is even; national actors defy the rules from within the institution.
While less dramatic than a group defection from the ICC, the policies adopted by the special synod represent as profound a repudiation of the Court. The African action exposes the weaknesses of the Court and further politicizes it.
International Law Imperialists vs. Proceduralists
The AU proclaimed that “no charges shall be commenced or continued before any international court…against any serving Head of State.” Their demand for immunity for current leaders has one problem: it directly contradicts the Rome Statute, the treaty that serves as the ICC’s charter. Article 27 states that a defendant’s leadership position is entirely “irrelevant,” and it notes that this applies to heads of state “in particular.” Indeed, “ending impunity” for national leaders is the maxim of the Court.
Nevertheless, the AU leaders’ demand is not absurd. As they note, customary international law has traditionally provided head-of-state immunity. Yet, the ICC is supposed to represent progress beyond such parochial and self-serving norms.
In short, the AU has endorsed violating the Court’s constitution while not quitting it. This has major negative implications for the integrity of international law. When the United States quit the jurisdiction of the International Court of Justice (ICJ) and when President Bush “unsigned” the Rome Statute, diplomats and international lawyers argued that these actions demonstrated how seriously international law has come to be taken. Even those opposed to such institutions exited them in the manner prescribed by treaty.
Let us distinguish between the broad currents in international legal thought – what I would call international law “proceduralists” versus “imperialists.” International law has traditionally been procedural–what counts is following the rules. If the rules enjoy respect, international law is considered a success. From this perspective, it would not matter whether the thirty-four African members of the Court quit or stay in. The Rome Statute provides rules for both entry and withdrawal, and thus doing the latter is value-neutral.
Yet, the ICC is the product of a different intellectual current. More specifically, it is a product of international law imperialism. This approach wants to increase the scope, power and prestige of international law and its institutions. It promotes the creation of more treaties, universal membership for treaties, and more international legal bodies exercising powers that previously would have been exercised by sovereign authorities, irrespective of whether the rules and institutions might not work well at first. Unlike proceduralists, imperialists think international law is on the whole a good in itself, capable of making the world a better place. Supporters of this current therefore proudly count the number of member states in the ICC—122 member states as of now—to demonstrate the global acceptance of the institution.
This number may still be cited after Addis Ababa and could lead some to consider the outcome of the summit a success for international law. Thus, Addis Ababa shows where the proceduralist and imperialist visions diverge. Imperialists may be relieved by the outcome of the summit, but proceduralists may consider it a defeat.
The ICC’s membership roll represents an increasingly hollow statistic. For one, the Great Powers of the world (i.e. the United States and China) have not joined, nor have massive and populous nations like Russia and India or nations currently involved in conflict (such as many Arab States or Israel). The latest decision by the AU further illustrates a fundamental disagreement brewing regarding the validity of the Court’s mission.
The notion behind the creation of the Court was that nations would agree that certain values trump parochial sovereignty considerations. This notion was tied to an allegiance to the “global community” in addition to individual nations. So far this type of consensus has not materialized.
The AU’s approach to the Kenya case is consistent with broader national responses to international criminal law and universal jurisdiction. This doctrine states that some crimes are so grave any nation can prosecute them. Nations support universal jurisdiction in theory–after all how can anyone support impunity for mass atrocities?— but when it is put into actual practice against them, they cry a sovereignty foul. The ICC was supposed to create a more honored and legitimate forum for such cases, one that would be harder to denigrate. It turns out, however, that national ratification of the ICC has not necessarily been accompanied by actual acceptance of its principles.
Out of Africa
The AU’s complaint lambasted the ICC for judicial colonialism and racism, but the Court cannot be blamed for the heavy African docket. Africa has the largest number of ICC members of any region, and as it happens, a fair number of crimes. These nations have voluntarily accepted the Court’s jurisdiction. Indeed, most of the African cases were actually taken to the Court by the affected nations themselves as a kind of judicial offshoring for sensitive litigation. Furthermore, two recent cases were referred by the Security Council, involving Libya and Sudan, and thus cannot support allegations of racism.
To be sure, the Kenyan situation, which precipitated the ICC-AU crisis, was the brainchild of the Court’s former prosecutor, and has been widely criticized as an inappropriate case choice. African countries have little to object to when it comes to their own “self-referrals.” What angers African countries instead are proceedings they did not initiate. Ironically, the Kenyan situation did not involve heads of state when it began; Kenyatta and his vice-president were freely elected after and despite their ICC indictment. That certainly creates an awkward situation.
Moreover, the Kenyan controversy underscores how detached the Court is from the societies for which it is seeking justice. In fact, the Court has refused requests by Uganda to drop a self-referred case against a rebel leader that could facilitate a peace deal to end a brutal, decades-long conflict. The reasoning behind the Court’s decision with Uganda was that establishing international legal order takes precedent over appeasing the local interests of a country.
Going forward, the AU’s strong insistence on immunity for African leaders in the context of judicial colonialism and racism allegations creates real political challenges for the Court. The ICC now faces a real risk of further reprisal from the AU if it pursues more African cases, and the Court is well aware of this. The same day the AU met, the ICC ruled for the first time that it had no jurisdiction in a case concerning a Qaddafi regime official, though it had to contradict its prior decisions to do so. The AU’s stance politicizes not just cases involving Africa, but also the first non-African case, which will inevitably look like a pressured concession to assuage a large bloc of member states.
Eugene Kontorovich is a professor at Northwestern University Law School. His research spans the fields of constitutional law, international law, and law and economics. Professor Kontorovich is also a leading expert on maritime piracy, universal jurisdiction, and international criminal law.